Received Papers from the Labor Commissioner?

Received Papers from the Labor Commissioner?

An employee who has a claim against his/her current or former employer for unpaid wages may file a claim with the California Labor Commissioner. Once a claim is filed, the deputy will schedule a conference for purposes of determining whether the claim can be resolved without a hearing. (Labor Code § 98.3) Each party will be mailed a document entitled “Notice of Claim and Conference,” which describes the claim, provides the date, time and place of the conference, and directs the parties that they are expected to attend.

At the conference, the employer should be prepared to talk with the deputy about the claim, including whether there are any witnesses; however, the employer does not need to bring witnesses to the conference. Also, the employer should also bring any documents that support its position. If the employer fails to appear at the conference, the claim will scheduled for a hearing. If the employee fails to appear, the claim will be dismissed. In the event that the case is not resolved at the conference, the deputy will refer the case to a hearing or dismiss the case if he/she finds no legal basis to proceed. (Labor Code § 98(a))

Once a hearing is scheduled, the employer will receive a document entitled Notice of Hearing, which will set the date, time and place of the hearing. At the hearing, the parties and witnesses testify under oath, and the proceedings are recorded. The employer has the following rights at the hearing:

1. To be represented by an attorney or other party of his or her choosing.

2. To present evidence.

3. To testify in his or her own behalf.

4. To have his or her own witnesses testify.

5. To cross-examine the opposing party and witnesses.

6. To explain evidence offered in support of his or her position and to rebut evidence offered in opposition.

7. To have a translator present, if necessary.

The employer must bring all documents that will support its position to the hearing. An employer who intends to introduce business records into evidence should also bring a person to the hearing who can explain how such records were prepared. The originals of all documents, if available, should be brought to the hearing plus two sets of copies. In order to call witnesses to testify, the employer may arrange for the witnesses to attend voluntarily or may request issuance of a personal subpoena to compel their attendance.

Subpoenas for documents, records or witnesses must be issued by the Labor Commissioner. Applications to the Labor Commissioner for issuance of subpoenas should be made at least fifteen (15) business days prior to the date of the hearing. These applications should be submitted on a form entitled Information for Subpoena. Costs incurred in the service of a subpoena, witness fees and mileage will be borne by the party requesting the subpoena.

Changes in the date, time or place of the hearing will not be granted except upon the showing of extraordinary circumstances. The decision to grant such a request is within the sole discretion of the hearing officer and senior deputy, and will be rare. If the employee fails to attend the hearing, the case will be dismissed. If the employer fails to attend the hearing, the hearing officer will decide the matter on the evidence he/she receives from the employer.

Within fifteen (15) days after the hearing, the hearing offer will serve the parties with a document entitled Order, Decision or Award (“ODA”) of the Labor Commissioner. The ODA will set forth the decision and the amount awarded, if any, by the hearing officer.